In our March 16, 2019 alert – A COVID-19 Q&A for Independent Schools – we noted that Congress was then working to pass a law to address paid sick leave for those affected by COVID-19. On March 18, 2020, Congress passed, and President Trump signed into law, the Families First Coronavirus Response Act (FFCRA), which requires schools to provide paid sick leave in certain circumstances. The FFCRA will be in effect April 2, 2020 and until December 31, 2020.
Below is a summary of the relevant provisions independent schools should be aware of as they continue to grapple with the COVID-19 pandemic.
The Emergency Family and Medical Leave Expansion Act
Schools are likely familiar with the Family and Medical Leave Act (FMLA), which provides certain employees with the right to take up to twelve (12) weeks of unpaid, job protected leave in certain circumstances. The Emergency Family and Medical Leave Expansion Act (EFMLA) amends the FMLA as follows:
Eligibility for Leave: All employers with fewer than 500 employees must provide EFMLA leave. Note, however, that the Department of Labor has the authority to exempt small businesses (defined as those with fewer than 50 employees) if the required leave would jeopardize the viability of their business. Under the EFMLA, employees who need to take leave for EFMLA reasons and who have been on the job for at least thirty (30) days are eligible for leave.
Reasons for Leave: Employees who cannot work or telework must be provided with EFMLA leave if they are unable to work or telework because their child's school or childcare center has been closed or other childcare provider is unavailable as a result of COVID-19.
Paid Leave Provisions: Under the EFMLA, the first ten (10) days of leave may be unpaid (however, employees may elect to use available paid leave). After the first ten (10) days of unpaid leave, schools are required to provide paid leave at not less than two-thirds the employee's regular rate of pay, up to $200 per day or $10,000 in the aggregate. For hourly employees who do not have set schedules, the paid leave rate should equal the average number of hours that the employee was scheduled per day over the six-month period prior to the leave (note, not prior to the COVID-19 outbreak).
Emergency Paid Sick Leave
Eligibility for Leave: Schools with fewer than 500 employees are required to provide employees who cannot work or telework with paid sick leave under the EPSLA. The Department of Labor, however, has the authority to grant a hardship exemption to small businesses (those with fewer than 50 employees) if paid sick leave would jeopardize the viability of the business. All employees are eligible, regardless of whether they are part-time or full-time and regardless of how long they have worked for the school.
Reasons for Leave: Schools must provide EPSLA leave if the employee is:
- an employee subject to a coronavirus quarantine or isolation order;
- an employee who has been advised by a healthcare provider to self-quarantine because of coronavirus concerns;
- an employee who is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
- an employee caring for an individual described in (i) or (ii) above;
- an employee caring for a child whose school or place of care is closed, or if the child care provider of the child is unavailable, because of coronavirus precautions; or
- an employee who is experiencing any other, "substantially similar condition."
Amount of Leave: Full-time employees are to receive 80 hours of sick leave, and part-time employees should receive leave equivalent to their average hours worked in a two-week period.
Pay Rate: Employees taking leave for themselves will have to be paid at least their normal wage or the applicable federal, state, or local minimum wage, whichever is greater. Employees taking time off to care for family members must be paid at two-thirds of their normal wage or the applicable federal, state, or local minimum wage, whichever is greater. In both instances, sick leave is capped at $511 per day and $5,110 in the aggregate for employees taking leave for themselves and is capped at $200 per day and $2,000 in the aggregate for employees taking leave to care for family members.
Interaction with Existing Policies: Schools that have existing paid leave policies will still be required to provide EPSLA leave. Schools may not require employees to exhaust other forms of available leave before taking EPSLA leave.
Notice Requirements: Employers must post a notice of employee rights. The DOL will provide a model notice for employer use within seven (7) days of enactment of the Act.
The FFCRA provides for refundable tax credits for employers, including schools, that are required to provide EFMLA and EPSL. Tax credits are allowed against the employer portion of Social Security taxes. In both instances, if the amount of the credit exceeds the employer's portion of Social Security taxes for wages paid with respect to the employment of all employees of the employer, the excess is treated as an overpayment and is refundable.
For EFMLA: Schools are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by the school for each calendar quarter. The qualified family leave wages are capped at $200 per day for each individual, up to $10,000 total per calendar quarter.
For EPSL: Schools are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by the school for each calendar quarter. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter.
Note: This summary only addresses the current federal law. State and local governments are also working to implement similar laws to provide for paid leave due to COVID-19. When revising your leave policies to address COVID-19 leave, consult with counsel to ensure that your school's policies are compliant with any and all applicable laws.